Samsung lawsuits against Apple over 3G patents could backfire

Samsung is making no bones about its intention intensify its legal fight with …

Samsung has officially stated that it plans to bring the hammer down on Apple's "free riding" on its patented 3G wireless technology. Among its latest moves is a lawsuit seeking to ban Apple's iPhones in The Netherlands, where Apple recently won an injunction barring Samsung from selling its Galaxy S-series devices in the European Union. Because the patents in question are essential to 3G standards, however, Samsung's strategy to sue over these patents may not be as successful as it hopes.

Unnamed Samsung executives were quoted last week claiming that the company planned to intensify its global legal fight with Apple over smartphone- and tablet-related IP. "[A]s long as Apple does not drop mobile telecommunications functions, it would be impossible for it to sell its i-branded products without using our patents," one executive told The Korea Times. "We will stick to a strong stance against Apple during the lingering legal fights."

Those same sentiments were echoed by Samsung senior vice president Lee Younghee in a recent interview with the Associated Press. She characterized Samsung's legal maneuvers against Apple since Apple launched a massive lawsuit against the company's Galaxy-branded devices in April as "passive." Now, however, Samsung "[will] be pursuing our rights for this in a more aggressive way from now on," Lee said.

Part of that new strategy is an aggressive lawsuit against Apple in the Netherlands, which seeks to ban import and sale of Apple's iPhones. Samsung claims that Apple's smartphones infringe on four European patents related to 3G technology. Those patents are "standards essential," part of the 3G wireless standards used by nearly all mobile phones now sold.

Samsung claims Apple (or any mobile phone maker) can't sell a 3G-compatible device without using Samsung's patented technology. However, such patents are typically encumbered by FRAND licensing agreements, wherein standards-setting organizations agree to use patented technologies from companies involved in the standards-setting process in exchange for an agreement that anyone using the standard can license the patents on "fair, reasonable, and non-discriminatory" terms.

Samsung has already aimed similar FRAND-encumbered patents against Apple in the US, UK, France, Australia, Japan, and South Korea. The company even claims to be ready to have Apple's next-generation iPhone 5 banned in Korea for infringing Samsung's wireless technology patents.

Samsung claims that numerous other manufacturers have licensed these patents while Apple has not, but Samsung apparently never made any offer to license the patents to Apple on FRAND or any terms according to legal briefs filed by Apple in US court. Furthermore, Samsung's use of FRAND-encumbered patents against Apple could constitute a violation of antitrust laws both here and in the EU. At least, that's the argument Apple is making. From our conversations with several IP experts, our understanding is that suing over FRAND-encumbered patents is frowned upon by courts in the EU in particular.

Meanwhile, Samsung still must deal with the fact that Apple is its number one customer for flash memory, processors, and other components. As we suggested, Samsung may have decided to become more aggressive after discovering that Apple is looking to move to other manufacturers to fab its custom-designed mobile processors. DigiTimes recently reported that Apple was also looking to secure memory from other suppliers, as well. If Apple is shifting its supply chain away from Samsung, the company may have decided it doesn't have much to lose using FRAND-encumbered patents in retaliation against Apple's recent injunctions.